MPAA Pounds RealNetworks’ Glaser on Witness Stand — Update

SAN FRANCISCO – RealNetworks CEO Rob Glaser, on the witness stand for the second day in a lawsuit challenging his DVD copying software, was hammered by the motion picture studios’ attorney questioning his earlier testimony.

On Tuesday, Glaser testified that it would be “relatively easy” for the Hollywood studios to encrypt rental videos differently than those sold to consumers. Glaser uttered that proposal as a way to prevent consumers from copying rented DVDs with the RealDVD software product that is the subject of the lawsuit.

Bart Williams, an attorney for the Motion Picture Association of America, told Glaser that the studios are the ones who decide how to market DVDs. “That’s their decision to make, not yours,” Williams said.

While Glaser responded it was “practical” to encrypt rentals different, the 60-minute back-and-forth grilling came on the third day of a federal court hearing to determine whether the $30 RealDVD software can go back on the market.

The studios claim the software circumvents encryption technology designed to prevent copying and is therefore illegal and a violation of the Digital Millennium Copyright Act. U.S. District Judge Marilyn Hall Patel tentatively agreed with that position last year when she ordered a halt of sales – 3,000 in all — pending the outcome of litigation.

RealNetworks disputes the allegations that the software circumvents the Content Scramble System, the encryption used to prevent legitimate DVD copying. That’s an important issue, which is being debated by expert witnesses, because if RealDVD circumvents technology, there is no fair use right to copy DVDs for personal use.

If RealDVD does not circumvent, the next issue is whether there is a fair use right to copy one’s own DVDs. It’s a question that federal courts have never answered. All the while, there’s plenty of underground tools to easily burn DVDs, and the MPAA fears a loss in this case would legitimize copying and even lead to a DVD player and burner called Facet that RealNetworks wants to introduce.

(It should be noted, however, that a California trial court has authorized a $10,000 high-end DVD burner, ruling that the decryption method did not violate the Content Scramble System license. The decision is on appeal. But the judge neither ruled on whether the Kaleidescape box circumvented technology, or whether there is a fair use right to copy DVDs – issues presenting themselves here in the RealDVD case.)

On Tuesday, and again Wednesday, Glaser testified that the RealDVD software was not the choice of pirates. That’s because it does not allow a copy of a movie to be made from a copy. And playback of the copy can only be played on five machines running the RealDVD software, he said.

Williams assumed that, even if the studios somehow encrypted rental DVDs different than others, that would not prevent consumers from copying the movies they have already purchased. “Addressing the rental problem does not necessarily address the pass along problem,” Glaser responded.

Glaser also added that he could not fathom how much it would cost the studios to encrypt rentals differently, and whether it was even feasible given that Hollywood buys back unsold DVDs from stores and resells them to rental companies.

“I don’t know specifically how the supply chain works,” Glaser said.

Toward the end of his cross-examination, Williams summed up the MPAA’s case when he asked Glaser why the studios would want to allow duplication of their copyrighted material.

“Are you,” Williams asked, “aware of any reason it would be in the studios’ interest?”

Testimony is continuing. The case is expected to end as early as Wednesday or Thursday.

UPDATE: Patel closed the courtroom about 2 p.m. for a second time when Matthew Bishop, a University of California at Davis computer scientist, began testifying about the general specifications surrounding the CSS code. Patel, like she did on Friday, declared the specifications a trade secret and ordered spectators and the press removed from her courtroom. She said that, although the CSS code has been hacked and published widely, the general specifications surrounding the code’s inner workings and architectural flow have not. Bishop was called to support RealNetworks’ position that RealDVD does not circumvent the CSS encryption.